Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2870

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2975)

MELBOURNE PIPE & CIVIL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 8 SEPTEMBER 2023

Application for approval of the Melbourne Pipe & Civil Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the Melbourne Pipe & Civil Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 September 2023. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for the approval of an enterprise agreement between Melbourne Pipe & Civil Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) concerning subcontractors in earthmoving, excavation, and drainage. The application was brought before the Fair Work Commission, Australia's independent statutory authority with a broad remit over industrial relations matters. The union and the employer sought to have their agreement recognised and approved under the Fair Work Act 2009, ensuring that the terms of the agreement were fair and met the necessary criteria for endorsement.

The central legal issue before the Commission was whether the proposed enterprise agreement met the requirements for approval under the Fair Work Act. This included assessing whether the agreement had been made independently by the parties, whether it covered only matters negotiable at the enterprise level, and whether it complied with the provisions of the Act concerning the protection of employees' rights and interests. Additionally, the Commission had to consider whether the agreement provided for the proper resolution of any disputes that might arise from its terms.

In determining the application, the Fair Work Commission carefully reviewed the agreement and the processes by which it was made. The Commission found that the agreement had been negotiated in good faith by the parties, and that it contained terms that were fair and reasonable. The Commission was satisfied that the agreement was not contrary to public policy and that it provided for the proper protection of employees' rights and interests. As such, the Commission approved the enterprise agreement, confirming that it met the necessary statutory criteria for endorsement.

The Fair Work Commission's decision to approve the enterprise agreement between Melbourne Pipe & Civil Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) signifies its compliance with the requirements of the Fair Work Act. This approval ensures that the agreement, which pertains to subcontractors in earthmoving, excavation, and drainage, will govern the terms and conditions of employment for the specified period, subject to the rights and protections afforded under Australian labour law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established